Whether a Show Cause Notice (SCN) or order passed either under the State GST Act or the Central GST Act may be found served or may be found ‘deemed served’ in terms of Section 169 of the State/Central Act, on such person, upon it being uploaded and thus made available on the Common Portal of the GSTN, or on dispatch of electronic mail at the email address provided by the affected person, at the time of obtaining registration?
Answering to this highly debated issue, the Allahabad High Court clarified that the service of a SCN and orders under the State/Central Act, by making such documents available on the Common Portal or by making dispatch through electronic mode, is permissible in law, and therefore a valid procedure. Further, no order of priority exists between the first five modes of service that may be adopted by the revenue authorities amongst clauses (a) to (e) of Section 169(1) of the CGST Act.
The Court ruled that service of notices and orders through electronic modes is legally permissible. However, there is no deeming fiction of law for constructive service when notices/orders are made available on the Common Portal or sent via email under Section 169(1)(c) and (d). Only before adopting service through affixation under clause (f), satisfaction must be recorded that it is not ‘practicable’ to serve such notice or order through any of the modes specified in clauses (a) to (e).
The Division Bench comprising Justice Indrajeet Shukla and Justice Saumitra Dayal Singh observed that the Income Tax Act is clearly applicable to the State/Central Acts, to the extent its provisions may be invoked in matters not squarely covered by or provided for under the State/Central Act. To that extent, the provisions of Sections 4, 12 and 13 are invokable with reference to ‘despatch’ & ‘receipt’ service attempted through electronic modes but not to actual or constructive service provided under Section 169 of the State/Central Acts, there is no conflict between the two sets of legislation, one relating to GST laws and the other to IT laws.
To the extent there is no acknowledgement generated, and further to the extent the GSTN and the revenue authorities are unaware and therefore unable to inform when any notice or order dispatched through electronic mode (made available on the Common Portal designed and managed by the GSTN), may have been retrieved or downloaded by the addressee, the Bench said that no inference may be drawn as to the actual date and time of such service, in terms of Section 12 and 13 of the Income Tax Act, for the purpose of Section 107 of the State/Central Acts.
The Bench explained that to the extent it is not admitted to the petitioners that they have received any email and to the extent that fact may remain disputable, no useful purpose may ever be served in entering into that enquiry by any Court or Tribunal or authority as it may involve deep forensic investigation of the ‘computer resource’ used by the addressee, before any conclusion may be drawn. It would amount to an immense waste of productive time and money, both by the revenue authorities and the taxpayers.
The Bench, therefore, left it to the wisdom of the State authorities to look at the practicalities of the situation and the steps taken by the Central revenue authorities. The petitioners are one class of persons who exist in a singular tax eco-system created by uniform GST laws that are pari materia to each other, from beginning to end, i.e. the State Act and the Central Act, the fact that in some proceedings drawn by authorities under the Central Act, notices and orders may be issued through physical mode also, while in another set of proceedings (against the same class of persons), drawn by the State authorities, notices and orders may be issued only through electronic mode, is not desirable.
Appearances:
Pranjal Shukla, for the Petitioner/ Taxpayer
C.S.C., Gopal Verma, for the Respondent/ Revenue
